Saturday, February 19, 2011
Dead Cert: Supreme Court Of Mississippi Finds Death Certificate Listing Time Of Death Admissible Under Rule 803(9)
Like its federal counterpart, Mississippi Rule of Evidence 803(9) provides an exception to the rule against hearsay for
Records or data compilations of vital statistics, in any form, if the report thereof was made to a public officer pursuant to requirements of law.
The recent opinion of the Supreme Court of Mississippi in Birkhead v. State, 2011 WL 539056 (Miss. 2011), gives me my first chance to address either version of Rule 803(9) and how the Rule differs from the common law in at least some states.
In Birkhead, Richard Earl Birkhead was convicted of the capital murder of Walter Lanier while engaged in a robbery. At trial, when the State tried to introduce a certified copy of Lanier's death certificate, defense counsel objected that
On the report they have the hour of injury as being 3:38 a.m. I don't know that they have established that. They have the hour of death as being 3:50 a.m. I don't think they have established that. We will object to it being introduced.
The court overruled this objection, and this ruling later formed one of the grounds for Birkhead's appeal. In addressing this appeal, the Supreme Court of Mississippi first noted that the certified copy of the death certificate was self-authenticating under Mississippi Rule of Evidence 902(4). The court then acknowledged that the death certificate contained hearsay but found that it was admissible under Mississippi Rule of Evidence 803(9).
Birkhead, however, cited the pre-Rules case of Flowers v. State, 243 So.2d 564 (Miss. 1971), for the proposition that "death certificates could be introduced into evidence but used only to show 'the physical cause of death.'" But according to the court, Flowers was irrelevant because "Rule 803(9) includes no Flowers-like qualification."